Tino James v. Regional Transport Officer, Office of the Regional Transport Officer, Kottayam; Joint Regional Transport Officer/Additional Registering Authority, Sub Regional Transport Office, Vaikom, Kottayam; State of Kerala represented by the Secretary to the Government, Department of Transport, Government Secretariat, Thiruvananthapuram; Transport Commissioner, Office of the Transport Commissioner, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** ## **WP(C).No. 29464 of 2018** ## **PETITIONER:** **TINO JAMES AGED 39 YEARS S/O.N.J.JAMES, NEERAKKAL HOUSE, MUTTUCHIRA.P.O, KOTTAYAM DISTRICT, PIN-686613.** **BY ADVS. SRI.M.V.THAMBAN SRI.ARUN BOSE SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN** ## **RESPONDENTS:** - **1 REGIONAL TRANSPORT OFFICER OFFICE OF THE REGIONAL TRANSPORT OFFICER, COLLECTORATE.P.O, KOTTAYAM PIN-686002.** - **2 THE JOINT RTO/ADDITIONAL REGISTERING AUTHORITY, SUB REGIONAL TRANSPORT OFFICE, VAIKOM, KOTTAYAM, PIN-686141.** - **3 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHPAURAM, PIN-695001.** - **4 THE TRANSPORT COMMISSIONER, OFFICE OF THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM, PIN-695033.** **SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.29464 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, who purchased a Force 2596CC Traveller vehicle with seating capacity of 13+1, vide Ext.P1 tax invoice, which has been granted temporary registration by the 2nd respondent Joint Regional Transport Officer, vide Ext.P2 temporary registration certificate, has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that he is entitled to get the said vehicle registered as Private Service Vehicle for Personal Use [wrongly stated as 'for private use' in relief No.(i)]. The petitioner has also sought for a writ of certiorari to quash Ext.P10 order dated 20.6.2018 of the 2nd respondent, whereby his application for registration stands rejected; and a declaration that Ext.P10 order rejecting the application for registration of the said vehicle as Private Service Vehicle for Personal Use (non-transport vehicle), is illegal, ## **W.P.(C)No.29464 of 2018** **:-3-:** arbitrary, discriminatory and is against the provisions of the Central Motor Vehicles Rules, 1989. The further relief sought for is a writ of mandamus commanding the 2nd respondent to register the vehicle covered by Ext.P1 tax invoice, as Private Service Vehicle for Personal Use (nontransport vehicle). 2. A counter affidavit has been filed on behalf of the 2nd respondent, opposing the reliefs sought for in this writ petition. Along with the said counter affidavit, a copy of letter No.RT11036/13/97-MVL dated 24.7.1998 of the Ministry of Surface Transport addressed to the Transport Commissioners/Secretaries of all State Governments and Union Territories is placed on record as Ext.R2(a). The petitioner has also filed a reply affidavit. 3. Heard the learned counsel for the petitioner and the learned Senior Government ## **W.P.(C)No.29464 of 2018** ## **:-4-:** Pleader appearing for the respondents. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P10 order dated 20.6.2018 of the 2nd respondent Additional Registering Authority, whereby the application made by the petitioner for registration of his Force 2596CC Traveller vehicle with 13+1 seats, as Private Service Vehicle for Personal Use (non-transport vehicle) stands rejected. 5. Clause (33) of Section 2 of the Motor Vehicles Act defines 'Private Service Vehicle' to mean a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes. ## **W.P.(C)No.29464 of 2018** **:-5-:** Going by the definition of 'transport vehicle' in clause (47) of Section 2 of the Motor Vehicles Act, 'transport vehicle' means a Public Service Vehicle, goods carriage, an educational institution bus or Private Service Vehicle. 6. The type of the vehicle, for the purpose of registration, is as per the notification issued by the Central Government in exercise of its powers under sub-section (4) of Section 41 of the Motor Vehicles Act, 1988. In exercise of the said power, the Ministry of Shipping, Road Transport and Highways has issued a notification No.S.O.1248(E) dated 5.11.2004, whereby the type of the motor vehicles for the purpose of sub-section (4) of Section 41 of the Act has been classified under two different categories, i.e., 'transport vehicle' and 'non-transport vehicle'. Serial No.(xi) under the head 'transport vehicle' is Private Service Vehicle. Serial No.(x) under the head 'non- ## **W.P.(C)No.29464 of 2018** **:-6-:** transport vehicle' is 'Private Service Vehicle registered in the name of an individual and if declared to be used by him solely for Personal Use'. 7. Going by the aforesaid notification dated 5.11.2004, a Private Service Vehicle has to be registered as 'transport vehicle'. On the other hand, a Private Service Vehicle registered in the name of an individual and declared to be used solely for personal use of the owner can be registered as 'non-transport vehicle'. 8. As per sub-section (1) of Section 56 of the Motor Vehicles Act, subject to the provisions of Section 59 (which deals with power to fix age limit of motor vehicles) and Section 60 (which deals with registration of vehicles belonging to the Central Government), a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of ## **W.P.(C)No.29464 of 2018** **:-7-:** fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorised testing station mentioned in subsection (2), to the effect that the vehicle complies for the time being with all the requirements of the Act and the Rules made thereunder. 9. The Central Motor Vehicles Rules made by the Central Government, in exercise of its rule making power under the relevant provisions of the Motor Vehicles Act was published vide notification dated 02.06.1989. Rule 62 of the Central Motor Vehicles Rules deals with validity of certificate of fitness. As per sub-rule (1) of Rules 62, a certificate of fitness in respect of a transport vehicle granted under section 56 shall be in Form 38 and such certificate when granted or renewed shall be valid for the period specified in clause ## **W.P.(C)No.29464 of 2018** **:-8-:** (a) to (d) of sub-rule (1). As per clause (a) of sub-rule (1), the certificate of fitness in respect of a new transport vehicle shall be valid for two years. As per the proviso to sub-rule (1) of Rule 62, the renewal of a fitness certificate shall be made only after the inspecting authority or authorised testing station as referred to in sub- section (1) of Section 56 of the Motor Vehicles Act has carried the tests specified in the Table given in Rule 62. The certificate of fitness of a transport vehicle issued in Form No.38 contains a certification by the inspecting authority or the authorised testing station that the vehicle complies with the provisions of the Motor Vehicles Act and the rules made thereunder. 10. Therefore, in the case of a 'transport vehicle', it is a mandatory requirement that it can be plied on public place only with a fitness certificate. If the fitness certificate of a ## **W.P.(C)No.29464 of 2018** **:-9-:** 'transport vehicle' is not valid, such vehicle cannot be deemed to be a vehicle having valid registration. On the other hand, in the case of a Private Service Vehicle for Personal Use, since it falls under the category of 'non-transport vehicle', there is no legal requirement to have fitness certificate. 11. The Ministry has issued Ext.R2(a) letter dated 24.7.1998, wherein it has been clarified that under the definition of 'Private Service Vehicle', as per clause (33) of Section 2 of the Motor Vehicles Act, a vehicle can be registered as non- transport vehicle if there is a clear indication by the applicant/company that the vehicle will be used for private purposes only, unconnected with any hire or reward. By the aforesaid notification, it has also been clarified that all such vehicles if registered in the name of any company should be categorised as non-transport vehicles. As a matter ## **W.P.(C)No.29464 of 2018** ## **:-10-:** of further caution, the Registering Authorities may take an undertaking from the company that such a vehicle shall be used only for private purposes and not for any hire or reward. However, the Registering Authority may decline the request in case of applications from any company having a tourist travel business. 12. The provisions under the Motor Vehicles Act, the Central Motor Vehicles Rules and also the notifications referred hereinbefore, would make it explicitly clear that the grant of registration to a vehicle as a Private Service Vehicle for Personal Use, has to be granted with caution and the authority has to ensure that it is not used for any purpose, which will attract registration of that vehicle as a transport vehicle. In order to ensure that the Registering Authority can insist for production of documents to show the financial background and other attendant circumstances of the ## **W.P.(C)No.29464 of 2018** **:-11-:** applicant. 13. As held by this Court in **Jagan Thomas v. State of Kerala and others (2012(2)KLT 365)** if the vehicle, after registration and classification as a Private Service Vehicle for Personal Use, is found used for the purpose of his trade or business and not for Personal Use or is found used as a contract carriage, certainly the respondents will be entitled to seize the vehicle and re-classify it as Private Service Vehicle with effect from the date of its original registration. 14. In **Seby Sebastian v. Joint Regional** **Transport Officer and others** (judgment dated 22.5.2018 in W.P.(C)No.212 of 2018) this Court held that it is only in case it is found that the vehicle is intended only for private use of the registered owner, the vehicle can be directed to be registered as a Private Service Vehicle for personal use. ## **W.P.(C)No.29464 of 2018** **:-12-:** 15. In the case on hand, it is mainly placing reliance on Ext.P5 ration card that the request made by the petitioner for registration of the vehicle as Private Service Vehicle for Personal Use stands rejected. A perusal of Ext.P5 would show that the petitioner is residing in the very same house in respect of which Ext.P5 ration card has been issued. As per Ext.P5, the total number of family members is nine and the monthly family income is only Rs.7,500/-. As per the family particulars furnished in Ext.P5, the petitioner is an agriculturist and no separate income of the petitioner is also shown. 16. During the course of arguments, the learned counsel for the petitioner, after making reference to the pleadings in the writ petition, would submit that the annual income of the petitioner for the financial year 2017-18 is Rs.11,33,045/- and that, the petitioner is prepared to produce the relevant ## **W.P.(C)No.29464 of 2018** ## **:-13-:** materials before the 2nd respondent Additional Registering Authority, so as to convince the said authority that he is having sufficient financial status to maintain the vehicle covered by Ext.P1 tax invoice, with seating capacity of 13+1 for Personal Use and that, his intention of purchasing such a vehicle is only to use it for family purpose. 17. Having considered the submissions made by the learned counsel on both sides, this Court finds that since the petitioner has already purchased the vehicle, a further opportunity can be given to the petitioner to substantiate his contentions and to show the bona fides of his request before the 2nd respondent Registering Authority to register the vehicle covered by Ext.P1 tax invoice as Private Service Vehicle for personal use, by producing necessary materials. It is for the petitioner to offer satisfactory explanation to the family income ## **W.P.(C)No.29464 of 2018** **:-14-:** and other particulars shown in Ext.P5 ration card, which is one issued on 15.3.2017, under the provisions of the Kerala Rationing Order. As per Clause 23 of the Kerala Rationing Order, no person shall obtain or attempt to obtain a ration card by furnishing false information. 18. In such circumstances, for the aforesaid reason, Ext.P10 order passed by the 2nd respondent Registering Authority is set aside. The said authority is directed to reconsider the matter with reference to Ext.P5 and other materials to be placed on record by the petitioner, and after taking note of the relevant statutory provisions. The exercise in this regard shall be completed by the said authority, as expeditiously as possible, at any rate within a period of one month from the date of receipt of a certified copy of this judgment. It is made clear that this Court has not ## **W.P.(C)No.29464 of 2018** **:-15-:** expressed anything as to the entitlement of the petitioner for registration of the aforesaid vehicle as Private Service Vehicle for Personal Use and a decision on that request shall be taken, strictly in accordance with law. Sd/- **ANIL K.NARENDRAN JUDGE** ami/ ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TAX INVOICE ISSUED FROM POOMKUDY MOTORS PVT.LTD 24/04/2018.** **EXHIBIT P2 TRUE COPY OF THE TEMPORARY CERTIFICATE OF REGISTRATION ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF INSURANCE ISSUED BY THE UNITED INDIA INSURANCE COMPANY LTD.** **EXHIBIT P4 TRUE COPY OF THE RECEIPT SHOWING PAYMENT OF MOTOR VEHICLE TAX FOR 15 YEARS** ## **W.P.(C)No.29464 of 2018** ## **:-16-:** **EXHIBIT P5** **TRUE COPY OF THE RATION CARD IN THE NAME OF PETITIONER'S MOTHER BEARING RATION CARD BEARING NO.1525039220.** **EXHIBIT P6** **TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DT.02/05/2018.** **EXHIBIT P7** **TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT BEARING NO.C1/2395/2018 KV DT.08/05/2018** **EXHIBIT P8** **TRUE COPY OF THE ORDER NO.C1/2395/2018 KV DT 17/05/2018.** **EXHIBIT P9** **TRUE COPY OF THE JUDGMENT DT.01/06/2018 IN WP(C)NO.16422 OF 2018.** **EXHIBIT P10** **TRUE COPY OF THE ORDER NO.C1/2395/2018 KT DT.20/06/2018.** **EXHIBIT R2(a)** **TRUE COPY OF THE LETTER NO.RT 11036/13/97-MVL DATED 24.7.1998 FROM THE MINISTRY OF SURFACE TRANSPORT, NEW DELHI.**